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SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM v. Etpison,
1 FSM Intrm. 370 (Pon. 1983)

TRIAL DIVISION-STATE OF PONAPE

[1 FSM Intrm. 370]

FEDERATED STATES OF MICRONESIA,

vs.

EDWIN ETPISON et al.,
Defendants.

CRIMINAL ACTION NO. 1983-541

ORDER DENYING MODIFICATION OF
    BAIL AND RESTRICTIONS    

Before Edward C. King
Chief Justice
September 14, 1983
Ponape, Caroline Islands 96941

APPEARANCES:
     For the Plaintiff:                         Fredrick L. Ramp
                                                  Attorney-At-Law
                                                  Office of the Attorney General
                                                  Federated States of Micronesia
                                                  Ponape, Caroline Islands 96941

     For the Defendants:
     Edwin Etpison:                          Maketo Robert
                                                  Attorney-At-Law
                                                  FSM Congress
                                                  Ponape, Caroline Islands     96941

     Ronny Ngirachereang:              Loretta Faymonville
                                                  Public Defender
                                                  State of Ponape
                                                  E. Caroline Islands     96941

     Uchel Ichiro:                               Albert Snyder
                                                  Attorney-At-Law
                                                         Kosrae State Legislature
                                                  E. Caroline Islands 96944

[1 FSM Intrm. 371]

     Defendant Edwin Etpison and two other defendants are charged with the crime of murder.  At the initial appearance on August 25, 1983, the government requested that all three defendants be held without bail pending trial.  After a review of an affidavit submitted by the government, the Court set cash bail for Mr. Etpison in the amount of $10,000 and established other restrictions in the event the cash bail requirement is met.  These other restrictions include a release only under the supervision of a custodian approved by the Court in advance and confinement to the house and surrounding property of the custodian's place of residence.

     The affidavit indicated greater weight of evidence against Mr. Etpison, so bail for the other two defendants was somewhat lower, $6,000 and $4,000, respectively. The other restrictions were identical for all defendants.

[1 FSM Intrm. 372]

     Defendant Etpison now moves pursuant to Rule 46(a)(4) of this Court's Rules of Criminal Procedure for review of the conditions of release.  Having reviewed the conditions, I conclude they are proper and suitable under the circumstances. They are hereby reaffirmed.  Pursuant to the requirements of Rule 46(a)(4), this opinion setting forth my reasons for requiring the conditions is filed.

Factors Considered
     Legal standards for setting bail are established by the Constitution and Rule 46 of this Court's Rules of Criminal Procedure.  The Constitution states simply that "[e]xcessive bail may not be required."  FSM Const. art. IV, 8.

     The explanation tendered by the Micronesian Constitutional Convention's Committee on Civil Rights was as follows:

The underlying concept of this section is the protection of the dignity of man.  The protection guarantees the principle of civilized treatment.  The content of this section is not static, but must draw its meaning from the evolving standard of decency that marks the progress of a maturing society.

SCREP No. 23, II J. of Micro. Con. Con. 793, 799.

[1 FSM Intrm. 373]

     The Committee Report goes on to explain:

Right to freedom on bail before conviction of a crime is justified on two grounds.  One is that the accused needs adequate time to prepare for his defense.  Such preparation is made more difficult if the accused is in prison.  Secondly, bail avoids punishment while still presumed innocent and before conviction.  A person later acquitted will have been punished for a crime he did not commit if he were confined in jail before the acquittal.

The state, however, has a valid interest in assuring the presence of the defendant at his trial.  For this reason, bail is permissible as long as the bail set is reasonably calculated to assure the presence of defendant at his trial.  To set bail higher than reasonably calculated to assure the  presence of defendant at trial constitutes "excessive" bail, prohibited, larger amount than is usually fixed for serious crimes is permissible if
justified by evidence to the point.

     Thus, the Court must approach this question of whether bail is "excessive" with a recognition that the defendant is presumed innocent, is to be treated with dignity, and needs a reasonable opportunity to prepare his defense. At the same time the judicial officer must keep in mind his responsibility to the public to assure that the defendant will be made to respond to the charges leveled at him.

[1 FSM Intrm. 374]

     With these "underlying concepts" in mind, I proceed to the Rule 46 provisions concerning setting of bail.  Rule 46(a)(2) lists the following factors to be taken into account:

     1.  Nature and Circumstances of the offense charged ) Defendant Etpison is charged with having been a principal actor in carrying out a brutal murder, one of the most serious crimes ever to have occurred on Kosrae.

     2.  Weight of the Evidence Against the Accused  ) All indications are that the evidence against defendant Etpison is substantial.

     3.  Accused's Family Ties ) Aside from his wife of 3 years and their children, the defendant, a Palauan by ancestry, has no family ties in Kosrae.  No other family ties within the Federated States of Micronesia have been brought to the Court's attention.

     4.  Employment - The defendant is employed on Kosrae and received net of $71.00 per week.  No evidence has been introduced indicating that his ties with his present employer, or his potential career with that employer, are sufficient to furnish a strong incentive to stay in Kosrae to try to retain his employment.

     5.  Financial Resources - The defendant and his wife have limited financial resources.  They have savings Of approximately $200 and a motor scooter which they believe,

[1 FSM Intrm. 375]

could sell for some $500.  Mrs. Etpison works at the Kosrae Hospital and receives gross pay of approximately $110 every two weeks.  They are responsible, not only for themselves and their children, but also Mrs. Etpison's parents, brothers, sisters, and others, aggregating some 12 people.  No information has been submitted concerning resources of others in the clan or extended family of the defendant either in Palau or elsewhere who might be looked to for assistance in meeting the $10,000 bail requirement.

     6.  Character and Mental Condition - The only information concerning this factor is that the defendant has been convicted of fraud and has failed to comply with a court order requiring restitution payments to the defrauded person.

     7.  Length of Residence in the Community - The defendant has resided on Kosrae for three years.  There has been no showing that he has become fluent in Kosraean or taken other steps to establish himself in the community more than would normally be expected in such a relatively short residency.

     8.     Record of Conviction - Within the last three years the defendant has been convicted of civil fraud and has been ordered to pay restitution.  As already mentioned,
he has failed to comply with that court order.

[1 FSM Intrm. 376]

     9.  Record of Appearance at Court Proceedings  - No information has been submitted but as noted above, the defendant's failure to comply with a court order of restitution indicates that he cannot be counted upon voluntarily to comply with court instructions.

     The available information portrays Mr. Etpison as having no strong ties to the Kosraean community or to the Federated States of Micronesia.  His civil fraud conviction and failure to comply with a court order dictate vigilance on the part of this Court, to assure that the defendant will appear to face the serious charges against him.  Counsel for defendant has candidly acknowledged that defendant's presence in jail has posed no particular problems for preparation of his trial defense.

     All of the above considerations strongly suggest that the less restrictive options in Rule 46(a)(1) would not be sufficient.  I conclude that a heavy cash bail requirement is necessary to assure appearance of the defendant at trial.

     The amount of bail is high in the light of the defendant's personal resources but, in absence of contrary evidence, I assume the defendant could call on other family and clan members to supplement his personal resources. Although I know of no way to calculate with precision a proper amount of bail, I find a $10,000 cash bail requirement reasonable under the circumstances outlined here.

[1 FSM Intrm. 377]

     Counsel for defendant has specifically agreed thatthe other conditions are reasonable and does not seektheir modification.

     The conditions are confirmed and maintained and the motion for modification is denied.

     Trial of this action has been set at the earliest possible date, November 15, 1983.

     So ordered the 14th day of September, 1983.

                                                                                               /s/ Edward C. King           
Chief Justice
Supreme Court of the Federated
States of Micronesia


     Entered this  7th  day of November, 1983.

 /s/ Emeliana J. Kihleng      
Chief Clerk of Court